A motion to declare the death penalty trial of Jerome Rogers a mistrial was denied April 15.
Rogers is charged with two felony counts of murder and one felony count of rape, with a possibility of the death penalty if convicted. Prosecutors accuse him of the murders of 86-year-old Wanda Paulin, on Dec. 12, 2010, and 76-year-old Mary Beth Blaskey, on Nov. 14, 2012.
Rogers’ counsel, Daniel Mangan and James McGee, filed a motion for mistrial March 28, alleging violation of the Racial Justice Act (RJA).
The new law extends protections from race-based criminal convictions by forbidding prosecutorial bias against defendants. Rogers is Black.
San Bernardino Superior Judge J. David Mazurek denied the motion.
“There’s a long line of cases that indicate comments made by defendants are admissible. The specific exception in (the RJA) is to quote somebody involved in the case. In this case it came directly from the defendant, it shows racial animus toward the victim, is a motive for committing the crime,” Mazurek said April 15.
Mazurek is setting a hearing to determine if Mangan and McGee’s mistrial motion violated the Business & Professions Code Section 6068. The section charges attorneys to “maintain the respect due to the courts of justice and judicial officers,” and to “advance no fact prejudicial to the honor or reputation of a party or witness.” A violation of that section could open the attorneys up to discipline by the California State Bar.
The statements
Rogers’ counsel argues that the law was violated when prosecutor Justin Crocker read from the transcript from Rogers’ 1984 trial. Rogers was convicted, from that trial, of burglary, robbery, kidnapping, sodomy and grand theft auto. He was sentenced to 31 years and eight months in prison.
The victim in that case, Lisa Lavadores, had testified that Rogers told her “he was going to take me somewhere to be raped by a lot of Black men.”
Crocker read that claim from the trial transcript on March 27.
“The prosecutor conjured an image of Mr. Rogers being a member of a race that readily and consistently rape white women when they are given the chance,” Rogers’ counsel said.
Crocker also read into the record Lavadores’ claim that “it isn’t that (Rogers) hated all white people, that some of the things that they did made him mad.”
Rogers’ motion for mistrial argues that was entered into the record to bias the jury against him.
“The prosecution, by highlighting the two statements allegedly made by Mr. Rogers in 1984, intentionally painted Mr. Rogers as a “Black sexual predator,” an “angry Black man” and a “Black brute” that hates and preys on white women to his jury. Such actions are a clear violation of the RJA,” the motion reads.
The motion asked for the court to declare a mistrial in the case, which was filed Jan. 9, 2015, for which the trial process had begun Aug. 21, and closing arguments are set for April 17.
The Racial Justice Act
The RJA says prosecutors will not seek or obtain a criminal conviction based on race. A violation is established if the defendant proves, by a preponderance of the evidence, either that:
- A judge, attorney in the case, law enforcement officer, expert witness, or juror exhibited bias or animus toward the defendant because of their race
- If a judge, attorney, law enforcement officer, expert witness or juror used racially discriminatory language about the defendant’s race, or otherwise exhibited bias based on the defendant’s race. Exemptions are made if the person speaking is relating language used by another that is relevant to the case
The act defines racially discriminatory language that implicitly or explicitly appeals to racial bias, including coded language, animal comparisons and references to physical appearance and culture.
The RJA’s author, Assemblymember Ash Kalra (D-San Jose), is a former public defender. In a statement provided to the Assembly, he said that the act was intended to overturn the 1987 decision in McCleskey v. Kemp.
“I have seen racial discrimination in the court system first hand. We must confront racism in the courts. We can no longer accept racial bias in the criminal justice system as unfixable. The California Racial Justice Act will help us take an important step in prohibiting the use of race and ethnicity as a factor in the state’s justice system across the board,” he said
Mazurek’s decision
“Motive is always relevant. In this case racial animus is a relevant factor the jury may consider in light of who the victims were in the 1108 case and in this case,” Mazurek said.
Mazurek compared the statements attributed to Rogers to the 1992 California Supreme Court case People v. McPeters. In that case, the Supreme Court found that racially-motivated comments from a defendant can be brought into the record.
“The prosecutor was entitled to elicit the facts surrounding defendant’s assault on (the victim); the racial epithet came from defendant’s own mouth,” the ruling said.
Mazurek also cited the 1997 California Supreme Court case People v. Scott. In that case, a woman testified that the defendant said “I will make sure (your daughter will) never, ever want to be near or around a Black man again.”
“Defendant himself injected race into his criminal behavior,” the Supreme Court had ruled.
Mazurek took issue with the motion itself, he said.
“Now there’s the issue of the defense’s declaration and comments made to this court. It’s one thing to zealously advocate for your client, and to say the changes in the law require the court to reanalyze what it’s doing and perhaps change the ruling. What it’s not OK to do is to impugn the integrity of the court,” he said.
“The court feels this is beyond regular advocacy; it certainly impugns the integrity of the court and I’m not pleased by it,” he continued.
Prosecutor’s response
Crocker, the prosecutor who read Lavadores’ statements into the record, said his intent has been to bring in relevant issues, and he elicited the testimony because it is relevant to the circumstances. He was not trying to bring race into the proceedings—race was brought into the proceedings when Rogers made those comments to Lavadores in the 1980s, he said April 15.
Before the judge made his decision, prosecutors laid out in writing their own reasons why the motion should be denied in an opposition document. The opposition document was written by Deputy District Attorney Philip Stemler of the Public Integrity Unit, and Supervising Deputy District Attorney Sean Daugherty.
Neither of the statements read into the record were racially discriminatory language, they argued. A group rape by a lot of Black men does not appeal to racial bias, compare Rogers to an animal, or suggest he deserves punishment because of his race, the reply said.
Even if the language was racial, witnesses, such as Lavadores, are not prohibited from using racial language, the reply continued.
Finally, the language was relevant to the case, prosecutors argued.
“Defendant injected race into this case with his threats to Ms. Lavadores; he should not reap a windfall of exclusion of relevant evidence due to his own misconduct,” they said.
The California Supreme Court has consistently upheld the admission of a defendant’s racial animus to prove motive, it continued, citing the cases of People v. Bivert (2011), People v. Smith (2003), People v. Quartermain (1997), and the cases referenced by Mazurek.
Prosecutors strongly denied any misconduct.
“Not only does the Defendant grossly misread and misconstrue the statute, he then doubles down by claiming the prosecution intentionally introduced ‘race’ and therefore committed misconduct. This accusation is made (after much projection by the Defendant’s counsel) and by completely ignoring the relevant language of the statute,” their document reads.
The brief suggested that defense counsel had forgotten their duties as attorneys.
“Defense counsel violated their duties as attorneys by attacking the reputation and honor of a fellow attorney when there was no requirement to do so. Nothing requires an attorney to accuse another member of the bar of intentional racism without evidence. Defense counsel even go so far as to ascribe a racist motive to the prosecutor without any support whatsoever,” they wrote.
Memorandum
A memorandum filed by Rogers’ counsel describes their situation as no-win: “bring the motion before the trial court and risk the wrath of those who need respond, or ignore the issue and be hammered as incompetent by appellate counsel.”
“With little guidance from Appellate Courts the bringing of this to the attention of the Court is not meant to disparage the Court of counsel. Counsel acted within the ruling the Court gave. This despite repeated attempts by the defense to warn the court off of the Section 1108 evidence, the Court allowed Section 1108 evidence in its entirety. This may have been consistent with pre-Racial Justice Act case law, but is dubious at best after its passage,” the memo says.
Their reply to the prosecutors’ opposition said that the speaker was not Lavadores, but Crocker.
It also cited the 2023 case People v. Simmons, which was decided by the California Court of Appeal, Second District, Division 6 after the RJA took effect. In that case, the court found that a more innocuous description of race violated the RJA.
“The parties agree that the prosecutor violated the RJA when she stated in her rebuttal argument, ‘(Akeem Simmons) bragged about all the women he was able to fool with his good looks, and he admitted to having an ambiguous ethnic presentation and that people that don’t know him think he’s something other than Black.’ We agree,” the ruling said.
“The suggestion that a witness is lying based on nothing more than his complexion is as baseless as it is offensive,” the ruling continued.
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